Frazier v. Philip Morris USA Inc.

• Decision Date: 08 June 2012
• Docket Number: No. 3D11–580.,3D11–580.
• Citation: 89 So.3d 937
• Parties: Phyllis FRAZIER, Appellant/Cross–Appellee, v. PHILIP MORRIS USA INC., and R.J. Reynolds Tobacco Company, Appellees/Cross–Appellants.
• Court: Florida District Court of Appeals

89 So.3d 937

Phyllis FRAZIER, Appellant/Cross–Appellee,

v.PHILIP MORRIS USA INC., and R.J. Reynolds Tobacco Company, Appellees/Cross–Appellants.

No. 3D11–580.

District Court of Appeal of Florida, Third District.

April 11, 2012.

Rehearing Denied June 8, 2012.

Gerson & Schwartz, and Philip M. Gerson, Miami, and Edward S. Schwartz, for appellant/cross-appellee.

Carlton Fields, and Benjamine Reid, Miami; Shook, Hardy & Bacon, and William Geraghty and Frank Cruz–Alvarez, Miami; Jones Day, and Gregory G. Katsas; White & Case, and Raoul G. Cantero, Miami, for appellees/cross-appellants.

Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.

SALTER, J.

In this Engle-progeny ¹ case, the jury returned a special interrogatory verdict in favor of the tobacco company defendants, appellees here, based on the affirmative defense that the plaintiff's, Ms. Frazier's, lawsuit was barred by the four-year statute of limitations, section 95.11(3), Florida Statutes (1994). Ms. Frazier has appealed the denial of her motions for directed verdict and new trial regarding the limitations issue. Appellees Philip Morris and R.J. Reynolds have cross-appealed the circuit court's ruling granting preclusive effect to certain findings by the Supreme Court of Florida in Engle and the trial court's refusal to instruct the jury regarding the twelve-year statute of repose applicable to fraud claims, section 95.031(2)(a), Florida Statutes (1994).

In the direct appeal, we reverse and remand the case for a new trial for two independently sufficient reasons. First, there was no competent record evidence that “the accumulated effects of the substance [had] manifest[ed] in a way which supplie[d to Ms. Frazier] some evidence of the causal relationship to the manufactured product” ² before the undisputed limitations bar date of May 5, 1990. For this reason, Ms. Frazier's motion for a directed verdict on the statute of limitations issue should have been granted.

Second, Ms. Frazier made and preserved meritorious objections to the court's adoption of the jury instruction and special interrogatory verdict question submitted by the appellees on the statute of limitations defense. Although this issue becomes moot on the basis of our ruling on the direction of a verdict, we conclude that Ms. Frazier's motion for a new trial was well taken on this issue as well.

In the cross appeal, we affirm the trial court's rulings on both issues.

I. Evidence and Rulings at TrialA. Tobacco Use and Medical History

At the time of the trial in 2010, Ms. Frazier was 65 years old. She began smoking cigarettes at the age of 14 or 15. After numerous attempts to quit smoking, she was successful in 1992, with medical assistance and nicotine patches. Ms. Frazier's medical records disclosed medical treatment for respiratory complaints beginning in approximately 1986. Ms. Frazier and those records described a bout with pneumonia:

Q: It was pointed out in the opening statement by [defense counsel] that in approximately 1986, before you came to Florida, that you had a bout of pneumonia. Do you remember that?

A: Yes.

Q: Did you associate the pneumonia with your cigarette smoking?

A: No. Q: Did any doctor make a connection to you between pneumonia and cigarette smoking?

A: No.

Q: Did you stop smoking for a period of time when you had the pneumonia and pleurisy?

A: Yes.

Q: And when you got better from the pneumonia and the pleurisy, what did you do in the terms of smoking?

A: I started smoking again.

Q: Had you actually had pneumonia at one other time when you were a young woman?

A: I had had pneumonia when I believe I was 21. I'd never been hospitalized for pneumonia.

Q: And did you make any connection between the pneumonia that you had when you were 21 and your cigarette smoking?

A: No.

Q: Did anyone advise you or tell you that you should believe that cigarette smoking had anything to do with the pneumonia when you were 21?

A: No.

In March and April 1987, Ms. Frazier returned to the emergency room with continued complaints of a cough and pain in her ribs. The treating physician diagnosed right middle lobe pneumonia and advised her to return for an x-ray if the symptoms continued. On a second visit, the same doctor diagnosed “recurrent pneumonia and/or bronchitis.” During the first visit, the doctor prescribed erythromycin; subsequently Ms. Frazier was switched to doxycycline for the infection and Percocet for the cough. Importantly, during these visits the treating physician did not refer her to a pulmonologist or order specialized tests for investigation of a possible condition more serious than a short-term infection.

Thereafter, Ms. Frazier moved from Massachusetts to Florida. In October 1987, she visited a walk-in clinic because she had a “bad cold” and a “temperature.” In her trial testimony, she described the incident:

Q: Up to that point in your life, had you ever thought to yourself that anything that you were experiencing was or even could be asthma?

A: Never. No. No.

Q: But at the walk-in clinic, they told you you'd had an asthma attack?

A: Right, he told me I had asthma.

Q: Did you agree with that?

A: No.

Q: What did you think?

A: I thought I had bronchitis. I thought I had a bad cold. I had a temperature. You know, I had all—I'd had bronchitis before. I mean as far as I was concerned—not even as far as I was concerned. I had bronchitis.

They didn't do any testing of any sort that I had done at the hospital in 1991 when I had the asthma attack. They didn't do a chest x-ray. They didn't do what's called an arterial blood gas where they check the oxygen in your blood.

They didn't give me a nebulizer treatment which is what they did when I had the asthma attack.

They didn't do anything that would have made me think that I had anything but bronchitis. They gave me an antibiotic.

They didn't give me inhalers. I mean they didn't do anything that would—so I didn't—I didn't think it was anything different.

* * * Q: But it sounds like you've got a pretty good understanding now of blood gases and inhalers and some of these other medical terms that you've just referenced in answer to my last question. When did you learn those things?

A: Unfortunately I learned them after I had an asthma attack in 1991 and then had my lung problems, my emphysema and the lung transplant and everything, years.

Q: Just so that there's no misunderstanding about this, the knowledge base that you have now about respiratory illness, diagnosis, and treatment is something that you've learned since it's been confirmed that you were sick?

A: Right. Exactly. Yes.

Q: Did you know any of that back in 1987, 1986, or any of those time frames?

A: No, I didn't know any. I didn't know any of that.

Ms. Frazier's next relevant medical incident occurred in February 1991—a time well after the statute of limitations bar date. She had developed an upper respiratory infection (she had a sore throat, nasal congestion, and a fever of 102 degrees). She went to an urgent care center and was then admitted to a hospital. The radiologist's report on a chest x-ray taken at that time indicated “changes of COPD,” ³ and Ms. Frazier was told that she had asthma. For the first time, she was referred to a pulmonologist on February 21, 1991. The pulmonologist concluded that Ms. Frazier had an asthmatic bronchitis, but his report expressed a concern for “the possibility of some underlying lung disease on a more chronic basis in view of [her] significant smoking history.” The pulmonologist's consultation report also states that “[s]he denies any history of emphysema or chronic bronchitis,” a statement that is not contradicted by the record in any respect.

In a follow-up in April 1991, the pulmonologist reported that the bronchitis had resolved. In a further follow-up in August 1991, the pulmonologist's records noted tobacco addiction and (for the first time, following the tests ordered in February) “underlying COPD,” and this was noted again during a visit in February 1992. After a follow-up in July 1992, Ms. Frazier's pulmonologist reported that she was a patient “with underlying COPD secondary to her long term tobacco use for the last 30 years.” Over the course of several years, the damage to Ms. Frazier's lungs was classified as “severe COPD” and as emphysema, and by 2001 she was under evaluation for bilateral lung transplants (which she later received).

B. Dr. Schroeder's Testimony

Before trial, Ms. Frazier sought an order “to preclude speculative testimony of Defendant's expert pulmonologist, Eric Schroeder, M.D., concerning the time frame during which [Ms. Frazier] developed COPD.” In her motion, Ms. Frazier argued that “Dr. Schroeder in this case purports to use the results from a pulmonary function test (PFT) performed on the plaintiff in 1991 to speculate as to what her lung function would have been four to six years earlier, even though no such tests were performed on the plaintiff before 1991 and no physician, even physicians treating her for other respiratory ailments, diagnosed her as having COPD before 1991.” The trial court granted the motion in part, precluding direct testimony regarding Ms. Frazier's state of mind, or her actual or constructive knowledge of her condition.

At trial, however, Dr. Schroeder was permitted to render opinions (over objection), purportedly because of his expertise in pulmonary medicine, that Ms. Frazier's 1986 and 1987 emergency room visits for pneumonia and bronchitis were actually manifestations of COPD and emphysema through “signs and symptoms that would have been apparent to the patient herself.” He also testified, based on Ms. Frazier's 1991 chest x-rays (ordered and evaluated well after the applicable statute of limitations bar date) and her first PFT report from 1993, that it was possible to deduce from them that she must have had COPD in the 1980s. He admitted, however, that this opinion was based on his own experience rather than any scientific research or medical...